BEYOND TERRORISM: THE POTENTIAL CHILLING EFFECT ON THE INTERNET OF BROAD LAW ENFORCEMENT LEGISLATION

St. John's Law Review, Spring 2006 by Gardella, Todd M

A string of cases immediately following World War I demonstrates the slow but progressive healing process.103 While upholding the validity of the government's actions, the Court began to set forth the early principles regarding subversive political speech.104 A series of concurring opinions by Justices Holmes and Brandeis sketched many of the ideas that continue to underlie the modern Court's rationale for the protection of free speech.105

A few decades after the initial First Amendment cases, the Court dabbled with a balancing test which allowed for greater consideration of government interests106 before moving toward the bright line approach ultimately adopted in Brandenburg v. Ohio.107 While some Justices pushed for an absolutist approach to free speech,108 the Court settled more comfortably into a categorical vision of free speech protections. The Brandenburg test set forth specific criteria the government was required to meet before it could proscribe speech.109 Over time, this approach carved certain categorical exceptions to free speech protections.110 On the whole, however, the consideration of the fundamental societal benefits of free speech remains at the heart of First Amendment jurisprudence.111 The modern rationales for free speech fall loosely into several categories112: individual selffulfillment;113 the pursuit of knowledge and truth;114 the participation in the democratic process essential to selfgovernance;115 political dissent to effectuate social change;116 and the practical effect of dissent as a safety-valve to diffuse societal tension.117 It is with reference to these basic free speech rationales that First Amendment limits are based.118

Modern courts employ the doctrines of overbreadth and voidfor-vagueness to analyze whether legislation adversely affects First Amendment rights.119 The doctrine of overbreadth concerns the impermissible encroachment on protected speech that may be incidental to the legitimate exercise of government regulation.120 This encroachment produces a chilling effect.121 The void-forvagueness doctrine has its roots in due process jurisprudence and involves the evaluation of whether a criminal statute is drafted to give citizens adequate notice of the illegality.122 The courts dealing with cases arising under the Patriot Act have faced challenges arguing both of these claims.123 Thus far, the courts have been more amenable to the vagueness argument124 than the overbreadth argument,125 or the oft-argued violation of associational rights.126 But, of course, all of these determinations depend on the particular provision in question.

B. Free Speech and the Internet

"[T]he Supreme Court has been careful and vigilant in protecting free speech on the Internet."127 The series of cases where the Court sustained online free speech protections against so compelling a governmental interest as the protection of children manifests the Court's deference to free expression in cyberspace.128 Recently, the Supreme Court sought to compel the government to explore alternative technologies as a means to further the government interest rather than rely on legislation that would impermissibly chill protected speech as an incidence to its enforcement.129 In justifying its protective disposition toward cyberspace, the Court has distinguished the Internet from traditional broadcast media.130 The characteristics of the Internet, however, continue to change; the challenge thus lies in developing sound principles to fit a medium where the constituent properties rapidly continue to evolve.